ANALYSIS OF NOVEMBER 30, 2010 CAV OPINION[Posted December 5, 2010] As sometimes happens, my day job has kept me away from the keyboard for longer than I’d want. The Court of Appeals gave us one published opinion last week, a criminal appeal relating to probable cause.
When you read the fact pattern in Powell v. Commonwealth and recognize that it’s a motion to suppress, you might react with an “Aw, c’mon . . .” A police officer (an 11-year vet with more than 50 crack investigations under his belt) saw Powell leave a known drug house and take off in his car at 80 miles an hour. The officer followed in an unmarked car. He saw Powell stop his car next to another, with the two suspect cars beside each other and the driver’s windows rolled down, as if to facilitate a conversation. The officer saw a hand-to-hand transaction, after which Powell brushed his fingertips with his thumb (what we non-experts may not know, but the experienced officer does, is that crack crumbs are tacky), and then drove off. Stopping Powell moments later, the officer found marijuana, crack, and a handgun.
Powell contended in a motion to suppress that the officer didn’t have probable cause to stop him. Citing what you’ll have to agree is fairly on-point authority, the court finds that this trained officer was entitled to suspect a drug transaction, given all that transpired here. The court affirms the conviction without breaking a jurisprudential sweat. In my opinion, the real reason this opinion is published is in the last two paragraphs, where the court applies the US Supreme Court’s recent Arizona v. Gant decision to find that the search of the car was reasonable under the circumstances. As Gant makes clear, you can’t search a car every time you make a traffic stop. But where it’s “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle,” then a search is permissible. The court finds here that this officer was justified in that suspicion. Criminal-law practitioners should be aware of this new decision to see how the Court of Appeals views this aspect of the Gant doctrine.